Government asks judge to dismiss Waco claims

Published: Thursday, April 06, 2000

WASHINGTON {AP} The Justice Department is asking the federal judge presiding over the Branch Davidians' wrongful-death lawsuit to throw out most of the plaintiffs' claims, among them that the government bears responsibility for the fire that incinerated the sect's retreat.

"Plaintiffs cannot meet their burden of proving that the fire was caused by the United States," the government says in a thick motion made public Wednesday, which will be filed in federal court in Waco. "Moreover, the admissible evidence amply supports a finding that the Davidians themselves at least some of them started the fire intentionally."

The plaintiffs' own fire expert "cannot determine who started the fire," the filing says.

The government is asking U.S. District Judge Walter Smith to throw out three of the five major aspects in the civil lawsuit that federal agents erred in not bringing in armored firefighting equipment; that they wrongly held back firefighters as the compound burned; and that using tanks to push into the compound deviated from the operations plan the attorney general approved.

If the government prevails, the plaintiffs would have only two areas left to pursue at trial: Whether federal agents used excessive force during the Feb. 28, 1993 gun battle that sparked the seven-week standoff, and by firing into the compound on the siege's final, deadly day. Federal officials have long insisted that their agents fired no shots on April 19, 1993.

"The discretionary function exception protects policy-grounded judgment or choice," the motion says. "Even if the on-scene commanders were negligent or abused their discretion by deciding not to have armored fire trucks or any other specific equipment available, those decisions would fall within the exception."

The plaintiffs' lead counsel, Michael Caddell, said the Justice Department is overreaching in its interpretation that the discretionary function protects all the decision-making that occurred during the siege.

"They want to take the discretionary function and blow it up to cover every misdeed by the FBI at Mount Carmel, and it just doesn't stretch that far," Caddell said Wednesday. "The reason it doesn't stretch that far is because there were decisions made at the highest levels of the FBI leadership which were either violated or not followed ... by the on-scene commanders."

More than 80 Davidians died during the fire that swept through their flimsy wooden building several hours into an FBI tear-gassing operation designed to break the standoff. Most died of smoke inhalation or burns, some from gunshot wounds.

Federal officials long have insisted the Davidians died by their own hands.

The Justice Department motion includes the transcript of the two-hour deposition that Attorney General Janet Reno underwent last week in which she denies Jamar or Rogers deviated from the plan. She also rejected the plaintiffs' contention that the on-scene commanders ordered the systematic destruction of the compound.

"I don't have any understanding that a decision had been made to demolish the building," Reno told Caddell, suggesting that tanks punched into the Davidians' retreat to insert tear gas and open escape routes.

Caddell said Wednesday he is poised to introduce into evidence documents Jamar and Rogers signed proposing commendations for the HRT agents who engaged in the "systematic" dismantling of the Davidians' gymnasium.

He suggested Reno and top FBI officials are boxed in by their testimony during earlier Waco congressional hearings that no deliberate destruction occurred. "Even though (the evidence) is put right in their face, they can't go back on what they've already testified to Congress," he said.

During the deposition, Reno acknowledged she gave no permission for use of pyrotechnic tear gas rounds. It was the FBI's belated admission last August that potentially incendiary tear gas canisters were used that touched off the Waco dispute anew leading to congressional investigations and Reno's appointment of a special counsel.

The transcript suggests the deposition, marked by frequent objections by Reno's lawyers, was at times testy.

Cleary exasperated after asking Reno the same question several times, Caddell told her: "You grew up in America, correct? You have used the English language all your life?"

Replied Reno: "If you will just ask it to me again, maybe I can try to answer it."